Western MacH. Exch. v. Grays Harbor Co.

I dissent. I am of the view that the defense of an excessive tax due to overvaluation, is a valid defense available to the appellant under the provision of section 7, chapter 62, Laws of 1931, p. 204 (Rem. Rev. Stat., § 11315-7 [P.C. § 6882-195]).

In the case at bar, the appellant is endeavoring to assert a defense to taxes sought to be foreclosed in proceedings instituted against its personal property by the respondents. The statute cited clearly provides that in any tax foreclosure proceeding, the defendant shall not be deprived of any valid defense allowed by law to the tax sought to be foreclosed therein.

The appellant taxpayer is not the moving party (it is, in fact, the defendant), hence the appellant is not required, under chapter 62, Laws of 1931, p. 201 (Rem. Rev. Stat., § 11315-1 [P.C. § 6882-189] et seq.), to pay the tax under protest and thereafter institute an action to recover the excess paid by it.

Casco Co. v. Thurston County, 163 Wn. 666, 2 P.2d 677, 77 A.L.R. 622, is not controlling. I avail myself of this opportunity to admit that I erred in signing the opinion in that case.

The judgment should be reversed.